On appeal from Superior Court of New Jersey, Law Division, Mercer County.
Approved for Publication January 9, 1997.
Before Judges King, Conley and Loftus. The opinion of the court was delivered by Conley, J.A.D.
The opinion of the court was delivered by: Conley
The opinion of the court was delivered by
The State appeals a January 2, 1990 order entered by the Superior Court confirming a public-sector arbitrator's award interpreting certain collective negotiations agreement provisions relating to unclassified employees with six or more years of service serving at will or at the pleasure of their employer. The effect of the confirmation as to these employees is that when such an employee is separated from public employment without a stated reason, and the employee/union claims the real reason is misconduct, the dispute as to the reason for the separation will be submitted to binding arbitration, with the burden on the employee. If the arbitrator determines the separation from employment is for misconduct, then the employee is entitled to binding arbitration during which it becomes the employer's burden to prove the misconduct. The trial Judge confirmed the arbitration decision because he viewed the arbitrator's interpretation of the relevant contractual provisions, Article V, § J.1 to .3, and Article V, § J.5, as reasonably debatable.
We do not necessarily disagree with the trial Judge's view that the arbitrator's interpretation of the pertinent provisions was reasonably debatable and not offensive of public policy or specific statutory authority. We recognize that judicial review of an arbitrator's award is somewhat limited. See Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains-Fanwood Educ. Ass'n, 139 N.J. 141, 149, 651 A.2d 1018 (1995). And we further recognize that N.J.S.A. 34:13A-5.3 permits public employers to negotiate disciplinary procedures for unclassified employees. We, as well, are mindful that the State has not asserted that the agreement to provide binding arbitration for unclassified employees with six or more years of service who are removed for misconduct is in any way inconsistent with the statutory authority of the respective state employers to hire such employees at will or at their pleasure. If the State, having negotiated binding arbitration for disciplinary removals of such employees, is not going to argue that that impermissibly intrudes upon the statutory right of a public employer to employ such employees only "to serve at the pleasure" of the employer, e.g., N.J.S.A. 52:27E-6, repealed by, L. 1994, ch. 58, § 70, eff. July 1, 1994; N.J.S.A. 2A:158A-6, we certainly will not make that argument for it. Compare State v. State Troopers Fraternal Ass'n, 134 N.J. 393, 417-20, 634 A.2d 478 (1993). But we think there is a threshold issue concerning whether binding arbitration on the disputed interpretation of the provisions was within the authority of the arbitrator in the first instance. That is, does the contract confer upon the arbitrator authority to issue a binding interpretation of the provisions of Article V as they relate to an unclassified employee with six or more years of service who has been separated from service without a statement of reasons? This precise issue was not addressed by the trial Judge, most likely because the respective applications for confirmation and vacation of the arbitrator's decision may not have raised the issue. Since arbitration in the public-sector must comply with the parties' contract, the law, and the public policy, e.g. Union County College v. Union County College Chapter of the American Association of University Professors, 295 N.J. Super. 15, 20-21, 684 A.2d 511 (App. Div. 1996), we think the issue critical. The answer seems quite clear to us. The applicable terms of the contract may authorize the parties to agree to an advisory opinion from the arbitrator but they do not permit binding arbitration on the threshold issue. On that basis alone we reverse.
That issue is better understood within the context of the applicable provision of the parties' collective negotiations agreement and the circumstances under which the dispute came to the arbitrator. As we have said, the pertinent provisions of the agreement are those set forth in Article V, § J that contain termination/disciplinary provisions applicable to unclassified employees who serve at-will or at the pleasure of their public employer. In full, Article V, § J provides:
1. The following shall constitute the disciplinary appeal procedure rights for unclassified and provisional employees who have been employed in such capacity for a minimum of six (6) months. Upon request of the employee, the employee may be represented by the Steward, or a non-State employee representative of the Union as follows:
In all disciplinary matters, except dismissal from service, such employees shall be entitled to utilize the provisions of this Article through the departmental hearing level.
2. In the event an unclassified or provisional employee is dismissed from State employment without receiving specific written reasons and such dismissal is not related to fiscal problems or programmatic changes and in the judgment of the State such dismissal is not of a nature whereby the employee must be immediately removed from the work location, the State shall provide the employee with at least ten (10) calendar days notice in advance of the dismissal.
Unless there are exceptional circumstances, when such employees are dismissed from State employment due to misconduct, management shall serve the employee with the specific written reasons relating to the misconduct. The employee may request and shall be granted a hearing by the department or agency head or his designee, whose decision shall be final. Time limits in E.3 shall apply. The burden of proof for unclassified employees shall be on the employee.
3. It is understood that nothing herein shall be construed as limiting the State from exercising its inherent discretion to terminate unclassified employees who serve at the pleasure of the department or agency head, without stating the reasons therefore. Dismissal related to job performance shall not fall within the purview of this article. Grievances concerning the interpretation of this article shall be processed in accordance with Article IV as non-contractual (A.2.) grievances.
4. In no event shall the provisions of this Article apply where the employee is being removed as a result of the certification of a ...